In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-15-00113-CV 

________________________

MOHAMMED FAWWAZ SHOUKFEH, M.D., P.A., 

D/B/A TEXAS CARDIAC CENTER, APPELLANT 

 

V. 

 

JAMES G. GRATTAN AND TEXAS 

WORKFORCE COMMISSION, APPELLEES 

 

 

On Appeal from the 99th District Court 

Lubbock County, Texas 

Trial Court No. 2014-510,479; Honorable William C. Sowder, Presiding 

 

 

November 18, 2016 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Appellant, Mohammed Fawwaz Shoukfeh, M.D., P.A., d/b/a Texas Cardiac 

Center (hereinafter “TCC”), appeals from a judgment in favor of Appellees, James G. 

Grattan, M.D., and Texas Workforce Commission (hereinafter “TWC”), on his claim for 
2

unpaid wages under the Texas Payday Act.1 By two issues, TCC asserts (1) the trial 

court failed to enforce the plain language of Dr. Grattan’s employment agreement and 

(2) its decision was not supported by substantial evidence. We affirm. 

BACKGROUND

Dr. Grattan was employed by TCC from June 19, 2006 through April 30, 2013. 

Throughout his employment, he was paid based on a formula set forth in a letter 

between him and Dr. Shoukfeh. According to this formula, Dr. Grattan was to be paid 

the revenue collected by TCC from Dr. Grattan’s patients, less (1) his direct expenses 

(e.g., insurance, communications, and other non-cardiac related expenses) and (2) his 

pro rata share of TCC’s overhead expenses.2 At the time of his initial employment, TCC

calculated each physician’s pro rata share by dividing its overhead expenses for the 

entire practice by the number of physicians employed by TCC. That is, overhead was 

evenly divided among all physicians employed by TCC. 

On September 1, 2012, Dr. Jason Wischmeyer left TCC leaving three 

physicians—Drs. Shoukfeh, Paul Overlie, and Grattan. In November 2012, TCC hired 

Dr. Ahmad Qaddour as a salaried employee. At the time, Dr. Qaddour was a new 

physician, not yet credentialed by the two hospitals served by TCC. Dr. Qaddour’s

 

1

See TEX. LAB. CODE ANN. §§ 61.001-.095 (West 2015 & Supp. 2016). 

 

2

Paragraph 1. E. of the letter stated as follows:

The following terms shall apply beginning June 19, 2006. [Dr. Grattan] 

will be responsible for his own malpractice and health insurance, 

life/disability insurance expenses, communication (i.e., cell phone, pager, 

etc.) expenses, and other non-cardiac related expenses as well as a pro 

rata share of the overhead expenses incurred by Association . . . and (ii) 

[Dr. Grattan] will receive [his] Net Receipts collected by the Association 

less Physician’s pro rata share of the overhead expense.

(Emphasis added.)
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contract with TCC, entitled “PHYSICIAN EMPLOYMENT AGREEMENT,” states, under 

ARTICLE I. EMPLOYMENT Section 1.1 General Terms, that “[p]hysican shall practice 

medicine at the offices of Texas Cardiac Center.” (Emphasis added.) Dr. Qaddour’s

agreement did not require that he pay any portion of TCC’s overhead expenses. 

Instead, its overhead expenses continued to be divided pro rata among Drs. Shoukfeh, 

Overlie, and Grattan. Dr. Grattan was not a party to Dr. Qaddour’s hiring or his 

compensation arrangement with TCC. 

In January 2013, Dr. Grattan informed TCC that he was resigning and intended 

to vacate the premises in ninety days. When he subsequently received his earnings for 

the period of September 1, 2012 through March 2013, he discovered TCC’s overhead 

expenses were being deducted, pro rata, from Drs. Shoukfeh, Overlie, and Grattan’s 

compensation, while no overhead expenses were being deducted from Dr. Qaddour’s

salary. Furthermore, from November 2012 through April 2013, TCC’s overhead 

expenses included Dr. Qaddour’s salary. 

In May 2013, Dr. Grattan filed a wage claim with the Texas Workforce 

Commission for wages due from TCC. He asserted his compensation had been 

erroneously calculated because TCC was dividing its overhead expenses among three 

physicians, rather than the four physicians actually employed. He sought $154,547.57 

in unpaid wages earned from September 2012 to April 2013. In August, a Preliminary 

Wage Determination Order was issued awarding Dr. Grattan $38,435.89 in unpaid 

wages. Both Dr. Grattan and TCC appealed that order. In October, the TWC Wage 

Claim Appeal Tribunal issued its decision awarding Dr. Grattan unpaid wages of 

$5,817.32. Both parties again appealed to TWC. 
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In February 2014, TWC issued its decision awarding Dr. Grattan unpaid wages 

of $125,988.81. TWC reasoned that TCC’s agreement with Dr. Grattan provided that its 

overhead expenses would be divided among its physicians pro rata and, for the entirety 

of the practice, its overhead expenses had been divided by the total number of TCC’s 

practicing physicians. Accordingly, TWC determined that TCC erroneously calculated 

Dr. Grattan’s compensation by subtracting one-third of TCC’s overhead expenses for 

the months of November 2012 through April 2013, instead of one-fourth of those

expenses.

In February, TCC petitioned for a trial de novo before the 99th District Court in 

Lubbock. All parties filed cross-motions for summary judgment. In March, the trial court 

granted summary judgment in favor of Dr. Grattan and TWC. This appeal followed.

DISCUSSION

TCC asserts Dr. Grattan’s employment agreement was unambiguous in its 

requirement that TCC’s overhead expenses would be divided among its “physicians” 

and that Dr. Qaddour was not a “practicing physician” for the purposes of that 

calculation because his duties and compensation differed from TCC’s other physicians. 

TCC also asserts that the district court failed to determine Dr. Grattan’s employment 

agreement was ambiguous and committed an error of law. We disagree. 

STANDARD OF REVIEW 

In an appeal from a TWC decision, a trial court reviews that decision de novo for 

the purpose of determining whether there is “substantial evidence” to support the 

decision. TEX. LAB. CODE ANN. § 212.202(a) (West 2015). See Mercer v. Ross, 701 
5

S.W.2d 830, 831 (Tex. 1986). In making this determination, the issue is not whether 

TWC made the correct decision; it is instead “whether the evidence introduced before 

the trial court shows facts in existence at the time of the [TWC’s] decision that 

reasonably support the decision”; that is, whether reasonable minds could have reached 

the same conclusion. Blanchard v. Brazos Forest Products, L.P., 353 S.W.3d 569, 572 

(Tex. App.—Fort Worth 2011, pet. denied) (quoting Collingsworth Gen. Hosp. v. 

Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998)). Because substantial evidence is more 

than a mere scintilla but less than a preponderance of evidence, the evidence may 

preponderate against TWC’s decision but still amount to substantial evidence. City of 

Houston v. Tippy, 991 S.W.2d 330, 334 (Tex. App.—Houston [1st Dist.] 1999, no pet.). 

The “[r]esolution of factual conflicts and ambiguities is the province of the 

administrative body and it is the aim of the substantial evidence rule to protect that 

function.” Tex. Workforce Comm’n v. BL II Logistics, L.L.C., 237 S.W.3d 875, 881 (Tex.

App.—Texarkana 2007, no pet.) (quoting Firemen’s & Policemen’s Civil Serv. Comm’n 

v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984)). Thus, TWC remains the primary 

fact-finding body, and the reviewing court may not substitute its judgment for TWC’s on 

controverted fact issues. BL II Logistics, L.L.C., 237 S.W.3d at 878; Edwards v. Tex. 

Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex. App.—Fort Worth 1996, no writ). Because

the determination of whether TWC’s decision was supported by substantial evidence is 

a question of law, we review de novo the trial court’s determination. BL II Logistics, 

L.L.C., 237 S.W.3d at 878 (citing El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 

S.W.3d 309, 312 (Tex. 1999)). 
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Further, TWC’s ruling carries a presumption of validity and the party seeking to 

set it aside has the burden to show it was not supported by substantial evidence. 

Hunnicutt, 988 S.W.2d at 708. Thus, the party seeking to overturn TWC’s decision 

must produce evidence that conclusively negates all reasonable support for the 

agency’s decision—on any ground offered. BL II Logistics, L.L.C., 237 S.W.3d at 880. 

We may only set aside TWC’s decision if it was made “without regard to the law or the 

facts, and, therefore, was unreasonable, arbitrary, or capricious.” Mercer, 701 S.W.2d 

at 831.

ISSUES ONE AND TWO—DR. GRATTAN’S EMPLOYMENT AGREEMENT

TCC argues that Dr. Grattan’s employment agreement is unambiguous and TWC 

erred by failing to enforce the plain language of that agreement. The crux of TCC’s

assertion is that Dr. Qaddour was not a “practicing physician” for the purposes of 

dividing TCC’s overhead expenses because he was a new physician with a different 

compensation package and his duties were different from TCC’s other physicians.3 

Trial courts may grant a summary judgment in cases tried under the substantial 

evidence rule, and appeals under the substantial evidence review are uniquely suited to 

summary judgment because the sole issue before the appellate court is a question of 

law, Brazos Forest Products, L.P., 353 S.W.3d at 573, i.e., whether there is substantial 

evidence supporting the district court’s decision. As such, “[t]here is no restriction on 

summary judgment in a case tried under the substantial evidence rule.” JMJ 

 

3

TCC does not take issue with the amount of damages awarded Dr. Grattan by the trial court in 

its Final Judgment except to say he was entitled to no damages. 
7

Acquisitions Mgmt., LLC v. Peterson, 407 S.W.3d 371, 374 (Tex. App.—Dallas 2013, no 

pet.). 

In a summary judgment case, the issue on appeal is whether the movant met his 

burden to establish that no genuine issue of material fact exists and that he is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c). See Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary 

judgment de novo and consider the evidence in a light most favorable to the party 

against whom the summary judgment was rendered, crediting evidence favorable to 

that party if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not. Id. 

When the parties file competing motions for summary judgment, we determine all 

questions presented and render the judgment that the trial court should have rendered, 

if appropriate. Tex. Workers’ Compensation Ins. Fund v. Tex. Emp’t Comm’n, 941 

S.W.2d 331, 333-34 (Tex. App.—Corpus Christi 1997, no writ). See Kaup v. Tex. 

Workforce Comm’n, 456 S.W.3d 289, 295 (Tex. App.—Houston [1st Dist.] 2014, no 

pet.). Even if we determine that the trial court made an erroneous conclusion of law, we 

will not reverse if the trial court rendered the proper judgment. Dupree v. Boniuk 

Interests, Ltd., 472 S.W.3d 355, 364 (Tex. App.—Houston [1st Dist.] 2015, no pet.). 

“We uphold conclusions of law if the judgment can be sustained on any legal theory 

supported by the evidence.” Id. 

When interpreting a contract, our primary concern is to ascertain and give effect 

to the written expression of the parties’ intent. Italian Cowboy Partners, Ltd. v. 
8

Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). The parties’ intent is 

governed by what is written in the contract, not by what one side contends they 

intended, but failed to say. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 

327 S.W.3d 118, 127 (Tex. 2010). We give terms their plain and ordinary meaning 

unless the contract indicates that the parties intended a different meaning. Dynegy 

Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). We 

examine the writing as a whole to harmonize and give effect to all of the contract’s 

provisions so that none is rendered meaningless or surplusage. J. M. Davidson, Inc. v. 

Webster, 128 S.W.3d 223, 229 (Tex. 2003).

Ordinarily, the parties’ intent may be discerned from the instrument itself. 

However, when a question relating to the construction of a contract is presented, we are 

required to take the wording of the instrument, consider it in light of the surrounding 

circumstances, and apply the rules of contract construction to determine its meaning. 

See ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 312 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied). See also Kachina Pipeline Company, Inc. v. 

Lillis, 471 S.W.3d 445, 450 (Tex. 2015) (“[w]e may consider the facts and circumstances 

surrounding the contract, including ‘the commercial or other setting in which the contract 

was negotiated and other objectively determinable factors that give context to the 

parties’ transaction’”) (quoting Americo Life, Inc. v. Myer, 440 S.W.3d 18, 22 (Tex. 

2014)). “If, in light of the surrounding circumstances, the language is capable only of a 

single meaning, we can confine ourselves to the writing.” ExxonMobil Corp., 174 

S.W.3d at 312. “The parol evidence rule does not prohibit the consideration of 
9

surrounding facts and circumstances that inform the contractual text and render it 

capable of only one meaning.” Dupree, 472 S.W.3d at 355. 

If a contract is not ambiguous, courts must enforce it as written without 

considering parol evidence for the purpose of creating an ambiguity or giving the 

contract “a meaning different from that which its language imports.” David J. Sacks, 

P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam). The contract is 

unambiguous if it can be given a certain or definite meaning as a matter of law. El Paso 

Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012). If the 

contract is subject to more than one reasonable interpretation after applying the 

pertinent rules of construction, then the contract is ambiguous and there is a fact issue 

regarding the parties’ intent. Id.

Under the Texas Payday Act, “wages” mean compensation owed by an employer 

for “labor or services rendered by an employee, whether computed on a time, task, 

piece, commission, or other basis; and . . . [certain] pay owed to an employee under a 

written agreement with the employer or under a written policy of the employer.” TEX.

LAB. CODE ANN. § 61.001(7)(A), (B) (West 2015). In addition, “[a]n employer may not 

withhold or divert any part of an employee’s wages unless the employer: (1) is ordered 

to do so by a court of competent jurisdiction; (2) is authorized to do so by state or 

federal law; or (3) has written authorization from the employee to deduct part of the 

wages for a lawful purpose.” Id. at § 61.018(1), (2), (3) (emphasis added).

Dr. Grattan’s agreement stated that he was responsible for paying “a pro rata 

share of the overhead expenses incurred by the Association.” The Association was 
10

defined as “Shoukfeh, M.D., P.A. d/b/a [TCC].” Before Dr. Grattan joined TCC, it was 

comprised of three physicians, and its overhead expenses were divided pro rata among 

those physicians. When Dr. Grattan joined TCC, its overhead expenses were divided 

pro rata among the four then-existing physicians.4 Thus, we find there is substantial 

evidence that Dr. Grattan’s employment agreement did not require him to pay any more 

than a pro rata share of TCC’s overhead expenses calculated by dividing those

expenses by the number of physicians working for TCC. Further, there is no evidence 

that the pro rata provision in Dr. Grattan’s employment agreement was ever amended to 

provide otherwise or that Dr. Grattan gave TCC any written authorization to deduct his 

share of the pro rata expenses based solely on three physicians. 

TCC asserts we should make an exception to this contractual provision and 

permit it to collect more than this amount from Dr. Grattan because (1) often times only 

three physicians shared in pro rata distribution, (2) Dr. Qaddour had a different 

compensation agreement contemplating a substantially lower salary until he obtained 

hospital privileges, (3) Dr. Qaddour should not be treated as a fully practicing physician, 

(4) Dr. Qaddour will suffer substantially if TCC deducts his share of its overhead 

expenses from his present salary, and (5) if this court affirms the district court’s 

judgment, we will be requiring that TCC violate section 61.018(3) of the Texas Labor 

 

4

In the absence of a contractual definition, we can resort to a standard dictionary. See PrattShaw v. Pilgrim’s Pride Corp., 122 S.W.3d 825, 833 (Tex. App.—Dallas 2003, pet. denied) (“[w]here 

terms are not defined in agreements, we will use the plain, ordinary and generally accepted meaning 

attributed to the word . . . . Dictionaries may provide assistance to courts in finding that meaning.”). “Pro 

rata” is defined as “proportionately according to some exactly calculable factor.” WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 1820 (4th ed. 1976). “Association” is defined as “the act or action of 

associating . . . the quality or state of being associated: companionship, partnership, connection, 

combination.” Id. The agreement clearly anticipated there would be other physicians in the association 

besides Dr. Grattan. 
11

Code by making TCC deduct overhead expenses from Dr. Qaddour when his 

agreement does not require it. See TEX. LAB. CODE ANN. § 61.018(3) (West 2015). 

Assertions (1), (2), (3), and (4) require the consideration of parol evidence 

introduced for the purpose of modifying Dr. Grattan’s employment agreement and may 

not be considered by this court. See Americo Life, Inc., 440 S.W.3d at 22 (the parol

evidence rule precludes considering evidence that would render a contract ambiguous 

when the document, on its face, is capable of a definite meaning). 

With regard to the fifth assertion, any dispute about how to handle TCC’s 

overhead expenses going forward is between TCC and its physicians, not this court or 

Dr. Grattan. By affirming the trial court’s judgment, this court is not requiring TCC to do 

anything more than pay the unpaid wages awarded by TWC and trial court to Dr. 

Grattan. Accordingly, because the plain language of the agreement provided that a pro 

rata share of the overhead expenses were to be deducted from Dr. Grattan’s net 

resources and substantial evidence otherwise supports the decision of TWC, the trial 

court did not err in granting judgment in favor of Dr. Grattan. Issues one and two are 

overruled.

CONCLUSION

The trial court’s order is affirmed.

Patrick A. Pirtle

 Justice